Terms and Conditions

Terms and Conditions

General

(1) These general terms and conditions apply to all current and future agreements, unilateral commitments by hyperCMS and generally other legal acts in the context of such relationships. Conflicting terms and conditions of the business partner do not apply unless hyperCMS expressly agrees to the applicability of the same in writing.

(2) A reference by the business partner to his own terms and conditions does not constitute consent to the applicability of the same, regardless of whether these are connected and the contract is signed. In the absence of a reservation by hyperCMS regarding the applicability of the general terms and conditions of the business partner, no approval can be concluded. The general terms and conditions of the business partner must always also be signed by hyperCMS to be legally binding.

(3) Oral statements, information, recommendations, agreements or other communications from hyperCMS are only binding if they are subsequently confirmed in writing. In order to be valid, they require written confirmation by the managing director and / or authorized signatory in a number of authorized representatives.

Offers, Scope of Services

(1) All offers from hyperCMS are non-binding.

(2) The business partner is bound to any offers (in particular orders or commissions) for 30 calendar days. An order or an order is deemed to have been accepted when it has been confirmed in writing by hyperCMS.

(3) The respective scope of services results from a separate written agreement.

(4) hyperCMS is entitled to change the scope of services. Changes to the scope of services will be communicated to the customer in writing, by fax, by e-mail or in any other technical manner. These changes come into effect with one month's notice to the end of each calendar month. The respective tariff for the scope of services offered by hyperCMS can be seen in the applicable tariff sheet or the agreement.

Service Fees

(1) The service fees and prices (collectively referred to as "prices") of hyperCMS result from the respective contract. The billing takes place depending on the agreement, but no later than the day the services are provided by hyperCMS. The amounts are due for payment within 14 days without deduction, unless another deadline is specified on the invoice. In the case of long-term obligations, the billing takes place monthly in advance.

(2) hyperCMS is entitled to change prices with future effect. Price changes of up to 3% will not be announced to the business partner in advance. Price changes of more than 3% will be communicated to the business partner in writing, by fax or by e-mail. These changes come into effect with one month's notice to the end of each calendar month. In the event of price changes that are 10% above a mere inflation adjustment, the business partner has an extraordinary right of termination within one month of the price change being notified.

(3) The payments to be made by the business partner to hyperCMS can be requested by hyperCMS by direct debit on the basis of a (separate) direct debit authorization from the business partner's account.

(4) If the account-keeping office refuses to redeem the direct debit or if the business partner is in default of payment for any other reason, interest on arrears of 9 percentage points will be charged, unless a different percentage is specified on the invoice. The business partner is also obliged to reimburse any costs arising from the default in payment or the assertion, such as dunning fees, collection fees and legal fees.

(5) In the event of default in payment by the business partner, hyperCMS is entitled - without prejudice to other rights - to withhold services and deliveries while observing the delivery period that is still open or to withdraw from the contract after a two-week grace period has elapsed. In this case, advance payments made are forfeited. hyperCMS receives a non-reducible, no-fault contractual penalty of 25% of the total order value (gross) or, in the case of continuing obligations, of six monthly fees. Proceed accordingly in the case of mixed forms. The assertion of further damages remains unaffected.

(6) The business partner cannot offset against claims from hyperCMS unless the claim has been legally established. Any assignment of any claims against hyperCMS by the business partner is only valid and effective with the express written consent of hyperCMS.

(7) All deliveries are made subject to retention of title. Ownership of physical objects (including manuals, data carriers or hardware) is only transferred to the latter after all hyperCMS claims against the business partner have been paid in full.
The intellectual property (copyrights, trademark rights, patent rights, other property rights or rights of use, etc.) always remains with hyperCMS - unless expressly agreed otherwise in writing.

(8) Insofar as rights are granted to the business partner, these are - unless expressly agreed otherwise in writing - non-transferable and non-exclusive. In particular, the business partner is not entitled to rent, lend, lease, sell or in any technical form wholly or partially accessible to third parties without the express written consent of hyperCMS. The object code of programs must also not be disassembled. It is also prohibited in any technical way to reconstruct the same or parts of it or the program logic or parts of it. Likewise, sub-licenses cannot be granted.

Contract Duration

(1) Insofar as it is a matter of continuing obligations and nothing else is agreed, the contract is concluded for an indefinite period and can be terminated by both business partners in writing at the end of each quarter with a one-month notice period. The date of the postmark applies.

(2) For an important reason, the contract can be terminated by both business partners at any time. An important reason applies in particular if a business partner fails to meet his contractual obligations despite setting a grace period of at least two weeks or if the performance of the service becomes impossible due to force majeure or the effects of third parties that cannot be prevented with economically justifiable means.

(3) hyperCMS is particularly entitled to withhold its services while maintaining its rights under the contract if the business partner

a) does not allow maintenance by hyperCMS;

b) is misusing the product or causing interference;

c) does not settle monthly invoices for the support or cloud services within 14 days after receipt;

d) does not settle unpaid invoices for any other received services for more than 2 months;

e) takes other actions that conflict with the business policy of hyperCMS.

(4) Upon termination of the contract, the data sets transferred by the business partner (with the exception of those for documentation and tracing of the business relationship), in particular content stored by the business partner in terms of IT, will be deleted. Software parts or programs or program packages licensed by hyperCMS are to be deferred.

(5) hyperCMS is entitled, if there is a suspicion of a violation of the provisions of this agreement, to have compliance with these provisions checked by a person who is bound to secrecy. The business partner is obliged to give this person access to all company premises and IT systems. If the suspicion turns out to be unfounded, hyperCMS bears the costs of the review.

Data Protection and Data Safety

(1) hyperCMS is entitled, but not obliged, to check all data transmitted by the business partner, in particular those stored in the web space provided, to refuse receipt, storage, processing, forwarding etc. and to delete the data, provided that this is required by law or has been ordered by a court. HyperCMS also reserves the right to delete any data stored by third parties (for example, contractual partners of the business partner, interested parties, etc.) and to refuse to forward them or to edit or process them. HyperCMS accepts no liability for any loss of data.

(2) In order to offset, operate and maintain the technical standard, to protect one's own computer and to check the legality of the behavior, hyperCMS is also entitled to inspect the stored or otherwise transmitted data, to document the access behavior, etc.

The business partner consents to the processing and use of his data. A revocation of this consent for the future is possible at any time. If you withdraw your consent, any access will be blocked and rights of use will expire immediately. hyperCMS retains (especially in the context of long-term obligations) its full payment claims until the next possible termination date.

(3) hyperCMS takes all technically appropriate and economically sensible measures to protect the data stored by hyperCMS against unauthorized access. However, hyperCMS is not liable if someone illegally gains access.

(4) The business partner undertakes to comply with all data protection regulations and to ensure that they are observed by persons attributable to his sphere (business customers, users of his website, etc.). If approvals under data protection law are required, he will obtain these independently. He holds hyperCMS harmless and harmless in this regard.

(5) Any liability on the part of hyperCMS arising from or in connection with illegal interventions, the spread of viruses or other damage from or in connection with the use of the access options and services granted by hyperCMS as well as the deletion of data is excluded.

Use of Services

(1) The use of the services provided by hyperCMS is limited to the direct business partner and their vicarious agents and business partners. Use by other people is expressly prohibited.

(2) hyperCMS is entitled but not obliged to control all content of the public content offered. If the content of the pages contradicts the business policy of hyperCMS as well as generally applicable standards of ethics and morals, hyperCMS is entitled but not obliged to delete this content. This also applies in the event of a violation of the law, a threat to public order or security and a threat to morality. The effort resulting from this deletion and the associated costs are to be borne by the business partner.

(3) Technical malfunctions caused by the business partner can be remedied at the expense of the business partner.

(4) The business partner is obliged to refrain from improper use of the services and to prevent them. In particular, any activity that endangers public order and security or morality, or that violates the law, is prohibited.

(5) The business partner is obliged not to grant access to the respective content of the provided web space to persons incapable of contract or only under the supervision of the respective legal representative. Unauthorized use of the content by third parties must be prevented by appropriate measures.

(6) With regard to all claims resulting from the non-compliance with the obligations by the business partner, hyperCMS is to be held harmless and harmless.

Warranty, Limitations on Liability

(1) hyperCMS provides its services according to the respective economically sensible state of the art. The business partner is responsible for the final acceptance of the service before it goes into production. There is therefore no right to have hyperCMS correcting errors that could have been found in a test free of charge after putting them into production. Due to the nature of the IT industry, constant and error-free availability of services is not possible. In the event of merely temporary service disruptions of up to 72 hours from the written notification of hyperCMS by the business partner, the business partner has no claim whatsoever. In the event of service disruptions lasting longer than 72 hours, the downtime will be compensated in the form of remuneration credits, which can reach a maximum of the amount of a quarterly remuneration. In the event of service disruptions as a result of defective or faulty hardware or software that does not originate from hyperCMS, any responsibility on the part of hyperCMS is excluded. Any claim by the business partner or a third party, in particular for warranty or liability, which goes beyond the aforementioned credit notes, is excluded. In particular, hyperCMS is not liable for damage resulting from or in connection with the use of the services provided. Any liability for consequential damage is also excluded. The business partner has to hold hyperCMS harmless and harmless with regard to any third party claims.

(2) The burden of proof for a violation by hyperCMS lies with the business partner. Any liability - insofar as it has not been expressly accepted in writing in individual cases - only arises in the event of gross negligence or intent on the part of hyperCMS. Any claims by the business partner must be asserted within six months (regardless of knowledge of the damage and the party causing the damage).

(3) Insofar as a defect occurs that is not compensated for by the above payment credits (e.g. due to a separate written agreement), hyperCMS can remedy the defect within a reasonable period of time through improvement or replacement. Conversion and price reduction by the business partner are excluded. The aforementioned exclusions of liability apply in any case.

(4) Any liability on the part of hyperCMS for content, databases, and any behavior that is set out of or in connection with data, information, etc. is excluded.

(5) In no event shall either party be liable under these terms and conditions under any circumstances for consequential or indirect damages of any nature whatsoever including, without limitation, any lost revenues or profits. Nor shall hyperCMS be liable for any claim that any deliverable of the Services infringes the intellectual property rights of a third party where the infringement arises from materials supplied by client to hyperCMS. Other than for physical injury or death caused by a party’s negligence, notwithstanding anything in these terms and conditions to the contrary the parties agree that each party’s aggregate liability under these terms and conditions shall not exceed, under any circumstances, the amount of fees paid to hyperCMS pursuant to these terms and conditions during the preceding three (3) month period or twenty thousand Euro (EUR 25,000), whichever is the lesser.

(6) Neither party hereto shall be liable for any breach of its obligations hereunder resulting from force majeure which, for the purposes of these terms and conditions, means any cause beyond the reasonable control of the party in question. The foregoing shall not apply in respect of any obligation of client to make payment hereunder. Each party shall give notice to the other upon becoming aware of an event of force majeure, such notice to contain details of the circumstances giving rise to such event. If a default due to an event of force majeure shall continue for more than six weeks then the party not in default shall be entitled to terminate the order affected by such event.

Deliveries

Deliveries by hyperCMS to the business partner are deemed to have been received if they were sent to the last written address, fax number or e-mail address or a technically similar device (e.g. SMS). The timely posting of the post meets the deadline.

Bankruptcy, Settlement Proceedings, etc.

If bankruptcy or settlement proceedings are opened against the business partner's assets or the opening of such or similar proceedings is rejected due to a lack of cost-covering assets, the contractual relationship will be terminated immediately in the case of continuing obligations. In any case, hyperCMS is entitled to charge a contractual penalty in accordance with these terms and conditions. All claims from hyperCMS are due immediately. Any claim of the contractual partner or the liquidator to the provision of further services by hyperCMS expires. The same applies in the event of the initiation of reorganization proceedings or other similar steps under insolvency law.

Restrictions on Disclosure of Confidential Information

Each party shall:

(1) maintain in confidence all information disclosed by the other relating to the disclosing party’s business ("confidential information"); and

(2) use such information only in connection with these terms and conditions.

This provision shall not apply to information which:

(1) becomes generally available to the public through no fault of the receiving party;

(2) was independently developed by the receiving party without access to the disclosing party’s confidential information;

(3) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party, provided that such source is not prohibited from transferring the information to the receiving party by any contractual, legal or fiduciary obligation; or

(4) is disclosed by hyperCMS to its subcontractors for use only in connection with these terms and conditions and under a duty of confidentiality no less onerous than that of the parties hereunder. The parties agree that all confidentiality obligations shall survive for a period of three years from the date of disclosure and that each party shall, upon request, return or delete all documents and electronic media containing the other party’s confidential information, including all copies thereof.

Miscellaneous

(1) The business partner gives his express consent to be included in the publicly accessible user directory by hyperCMS.

(2) Changes and additions to these terms and conditions must be made in writing to be effective. Likewise, all declarations relating to the contractual relationship must be made in writing.

(3) Should provisions of these general terms and conditions be or become ineffective, invalid or unenforceable, this shall not affect the effectiveness, validity or enforceability of all other provisions. In the event of the ineffectiveness, invalidity or unenforceability of one of these provisions, a provision that comes as close as possible to the economic result and is not ineffective, invalid or unenforceable shall be deemed to have been agreed.

(4) These general terms and conditions are subject to substantive Austrian law. The same applies to every agreement or declaration made by hyperCMS, unless the contrary has been expressly agreed in writing. Any reference norms of Austrian law to foreign law as well as the UN sales law are excluded from this validity agreement; these are not used.

(5) For all disputes arising from or in connection with this agreement, as well as its coming into being or its effectiveness, in particular also the effectiveness and coming into being of this jurisdiction agreement, the contracting parties agree that the competent court for Vienna-Inner City shall have exclusive jurisdiction.

(6) The place of payment and performance is Vienna.

(7) The business partner declares to be a registered entrepreneur. He is liable to hyperCMS for the incorrectness of this information. Insofar as these general terms and conditions are based on a contractual relationship with a consumer without the involvement of the business partner or persons attributable to his sphere, the regulations only apply in accordance with the provisions of the KSchG.

(8) As far as permissible, all rights and obligations arising from or in connection with these General Terms and Conditions and the contractual provisions on which they are based are transferred to legal successors. Any legal succession on the part of the business partner requires the express written consent of hyperCMS.

(9) Rights and obligations from these General Terms and Conditions or the underlying contractual agreement apply jointly to several business partners, with the use of all or individual at the discretion of hyperCMS

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